TMI Blog2013 (1) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... g in the custody of the Assessing Officer in respect of the Mody Group of cases. It was further indicated in the communication that since the AO at New Delhi had jurisdiction over the assessee, it was proposed that necessary proceedings may be adopted against the assessee in accordance with the provisions of chapter XIVB of the said Act. There is no satisfaction recorded by the said AO of the Mody Group of companies that any undisclosed income belonged to the assessee. As such the very first mandatory condition precedent for assuming jurisdiction under Section 158BD and subsequently under Section 158 BC has not been satisfied. This failing on its own would render the entire proceedings to be without jurisdiction - in favour of assessee. - ITA 193/2004 - - - Dated:- 4-1-2013 - MR. BADAR DURREZ AHMED MR V.K. JAIN, JJ. For the Appellant : Mr Sanjeev Sabharwal, Adv. For the Respondent : Mr C.S. Aggarwal, Sr. Adv. with Mr Prakash Kumar, Adv. BADAR DURREZ AHMED, J. 1. This is an appeal under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as the said Act ) against the order of the Income Tax Appellate Tribunal, New Delhi, dated 11.09.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certained that during the course of search u/s 132(1) of the I.T. Act, 1961 in the case of M/s Hindustan Development Corporation Ltd. of 15-, Barakhamba Road, 7th Floor, Hansalaya, New Delhi following books of accounts and other documents pertaining to your assessee namely M/s Inter Continental Trading Investment Co. Ltd. were seized and they are lying in my custody. Details of seized books of accounts: 1. Ledger-F.Y. 1994-95 2. Cash Book- F.Y. 1994-95 3. Ledger F.Y. 1995-95 4. Cash Book- F.Y. 1995-96 5. Ledger- F.Y. 1996-97 6. Cash Book- F.Y. 1996-97 (written upto 9.11.96) Since you are having the jurisdiction over the assessee M/s Inter Continental Trading Investment Co. Ltd. and as such it is proposed that necessary proceedings may kindly be adopted against the aforesaid assessee in accordance with the provisions of Chapter- XIV-B read with section 158 BD of the I.T. Act, 1961. In this regard it may be pointed out that the inspector attached with me cannot be spared at this moment for the purpose of transmitting the seized materials to your honour due to the fact that he has been assigned with so many enquires and investigation works in relation to certain ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 260A by the respondent / assessee. This court did not admit the appeal. However, it directed that the findings / observations of the Tribunal in the order dated 21.02.2000 would not be taken into account by the Assessing Officer at the time of the fresh assessment. The High Court order dated 21.08.2001 reads as under:- Heard. Since the Tribunal has directed fresh assessment by setting aside the assessment, we do not find any scope for interference in the appeal. However, it is made clear that the parties shall be free to place such material as would be necessary for the purpose of assessment pursuant to the direction given by the Tribunal. While making the assessment, the Assessing Officer shall not be influenced by any observation made by the Tribunal since the Tribunal itself has observed that the observations are not findings. It is, however, made celar that they should not be treated as guidelines and an independent application of mind has to be done by the Assessing Officer. It goes without saying that the assessee shall be free to take the plea about non-applicability of Section 158 BC and BD of the Act. Appeal stands disposed of. (Underlining added) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found. It is seen from the record that all what had been seized as a result of search conducted on Mody Group of cases, is the regular books of account of the assessee company for the financial years 1994-95, 1995-96 and 1997-97 (up to 21st November, 1996) and no more such material was either found or gathered before either initiating the proceedings or framing the assessments on the bais of which it could be held there was an undisclosed income. 11. The revenue is aggrieved by the said decision of the Tribunal. The first issue that is sought to be raised by the appellant/revenue is that the Tribunal was not correct in law in holding that the Assessing Officer had wrongly assumed jurisdiction under the provisions of section 158BD of the Income Tax Act, 1961. We feel that the Tribunal has correctly come to this conclusion particularly in view of the Supreme Court decision in the case of Manish Maheshwari v. A.C.I.T: (2007) 3 SCC 794. In that decision the question before the Supreme Court was whether the notice issued to the assessee therein satisfied the requirements of Section 158 BD of the Act or not? Section 158BD of the said Act reads as under:- 158-BD. Undisclosed income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which arose for their consideration was whether the notice dated 06.02.1996 satisfied the requirement of Section 158BD of the said Act. The Supreme Court observed that the said notice did not record any satisfaction on the part of the Assessing Officer for assuming jurisdiction u/s 158BD of the said Act. And, as the Assessing Officer had not recorded his satisfaction, which was a mandatory requirement, the notice did not comply with the requirement of Section 158BD of the Act and therefore recourse to block assessment in terms of Section 158 BC could not be undertaken. 14. The same is the position in the present case. We have already set out the communication dated 28.10.1997 from the Assessing Officer of the searched person to the Assessing Officer of the respondent / assessee. There is no recording of any satisfaction that any undisclosed income belongs to the respondent/assessee. The communication dated 28.10.1997 merely indicates that books of accounts pertaining to the respondent assessee/assessees were seized and were lying in the custody of the Assessing Officer in respect of the Mody Group of cases. It was further indicated in the communication that since the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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